Judge's gavel

Management professor’s work part of Supreme Court justice’s dissenting opinion

When it comes to salaries, what we don’t know about a co-worker’s pay can hurt us—especially if a peer employee is earning more for similar duties, education and experience.

An opinion from the U.S. Supreme Court this year brings that salary issue, and the workplace norms associated with keeping quiet about pay, all the more sharply into focus. The court’s May 29 opinion drastically limits timeframes for filing workplace discrimination cases based on salary and raises.

Within that decision, Mays Business School Management Professor Len Bierman’s work on salary and pay secrecy was the only scholarly journal source cited by the court’s justices.

In the potentially landmark 5-4 employment discrimination decision Ledbetter V. Goodyear Tire & Rubber Company, the nation’s highest court said that employees must file a claim for discrimination based on pay differentials within 180 days of any alleged illegal disparity.

In her dissenting opinion, Justice Ruth Bader Ginsburg relies on Bierman and co-author Rafael Gely, a Univeristy of Cincinnati law professor, for their 2004 Berkeley Journal of Employment and Labor Law article, “Love, Sex and Politics? Sure. Salary? No Way: Workplace Social Norms and the Law.” Ginsburg and Justices Stevens, Souter and Breyer argue that the strict time limits imposed by the majority for filing claims of this kind were unrealistic. Employees often don’t know about pay disparities in the workplace, they write, due to pay secrecy and confidentially rules.

The dissenting justices further note that women and minority group members in particular can be especially “adverse to making waves”—or reporting potential pay discrimination to the U.S. Equal Employment Opportunity Commission—during their first months on the job. That’s just when the court’s majority says workers must notice and file a claim for any alleged pay disparity.

Following labor law research, Ginsburg and the dissenting justices point out that initially very small differentials in pay can grow exponentially over time, since pay raises are frequently awarded as a percentage of base pay. That makes the initial disparity in pay all the more dramatic in later years.

Though Bierman’s work fuels a dissenting opinion that doesn’t carry the force of law, his management law research has become a noted source in the ongoing social debate around salary discrimination.

“It’s heartening to see my work have some true real world impact,” Bierman said. “Many often think professors live in ivory towers, but that is not the case.”

Earlier in his career Bierman, who holds a JD from the University of Pennsylvania, served as a special assistant to the chairman of the Equal Employment Opportunity Commission. A professor at Mays Business School since 1982, he now teaches and conducts research primarily in the areas of employment regulation, negotiations and international trade. He has published widely in these areas, and has also previously held high-level positions at the U.S. Department of Labor and the U.S. International Trade Commission.

Read more about the decision here (.pdf)